Latest Kemper Appeal Denied; Case Goes to Court of Appeals

by Joan R. Simon

(May 17, 2006) In a unanimous decision handed down on May 5, the Appellate Division of the New York State Supreme Court denied Richard Cantor’s motion to appeal the January 2006 ruling that permits the school district to reconfigure the Kemper Memorial Park to make room for a new soccer field (see: Request for Appeal Keeps Kemper Park Plans in Limbo and Motion Ruling).

In January 2006, the Appellate Division ruled that Richard Cantor, the grandson of the donor who has sued to block the board, does not have standing to enforce the terms of the restrictive covenant in the 1945 deed conveying title of the park to the district (see: Court Rules for School Board on Kemper Park). In addition, they ruled that the board’s plan met the requirements of the covenant.

The January ruling overturned the original decision a year ago that granted Mr. Cantor standing to bring a suit and prohibited the school district from implementing their proposed plan for the park. (see: Judge Rules: Kemper Park Changes Prohibited).

What’s Next?

“It’s not a huge surprise that the appellate division would decide” to uphold their original decision, said Paul P. Rooney, an attorney at Reed Smith LLP who is representing Mr. Cantor. He said the next step would be to “file a motion with the New York Court of Appeals for the right to argue our case." Unless the Court of Appeals grants Mr. Cantor standing before the court, the January 2006 decision cannot be appealed. Mr. Rooney said that he expects to file the motion before the end of the month. “If that’s granted, then we file our briefs with the Court of Appeals,” seeking to overturn the earlier ruling in favor of the school board. “We are hoping a new court will see it differently,” he said, adding, “If it’s not granted, it’s the end of this litigation.”

School Board president Celia Felsher commented, “We were very pleased that the court denied the appeal. As we’ve said many times, no actions are currently planned for the property.”

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